WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

87.— (9) Prohibition re identifying person charged.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2020-12-09

Court File: Elliot Lake File No. 16/11

Between:

Children's Aid Society of Algoma Applicant

— AND —

L.G. M.H. R.C. (Added Party) Respondents

Before: Justice John Kukurin

Heard on: Written submissions

Supplementary Reasons for Judgment released on: December 9, 2020

Counsel

• Anthony Marrato — counsel for the applicant society
• George Florentis — counsel for the respondent mother, L.G.
• No appearance — respondent father, M.H.
• Eric McCooeye — counsel for added party, R.C.
• Andre L Berthelot — counsel for the Office of the Children's Lawyer, legal representative for the children

Reasons for Judgment

Kukurin J.:

Introduction

[1] These are supplementary Reasons following the release of my Reasons after trial which are now reported at [2020] O.J. No. 2868, 2020 ONCJ 297. The prior Reasons, released June 11, 2020, dealt with a status review application involving the three subject children: M. (female, now age 16 years), J. (male, now age 14 years) and P. (female, now age 10 years). These present Reasons deal only with the child J.

[2] To clarify why the trial is continuing, it is not to change anything I have already determined, but rather to make further decisions required to complete the trial. These further decisions are based on the evidence already heard at the trial as well as additional evidence which the parties through their counsel have filed since the release of my prior Reasons after trial up to the present. I have chosen to issue three supplementary Reasons, one for each child. These supplementary Reasons deal only in part with respect to the urgent motions brought by OCL counsel for the children and by the Society.

[3] Moreover, the "in person" trial format with viva voce evidence is not being carried on in this continuation of the trial. I have directed that the evidence is to be by way of affidavits. I have invited any party wanting to question any affiant of such affidavits to do so. None have chosen to do so. The submissions of counsel are also not being presented orally, as I have directed that they are to be written submissions. There are a number of rationales for these directions and they are fully explained in a Case Conference Continuation Memo I circulated to all counsel dated Sept 9, 2020.[1]

[4] A review of my Reasons after trial indicates my inclination with respect to disposition. However, I was unable to deal with the issue of 'disposition', or with the other unresolved issue of 'access', primarily because I had neither the evidence, nor submissions of counsel on these two essential claims. Since release of my Reasons after trial on June 11, 2020, a number of developments have occurred:

[5] OCL counsel for the children brought a motion for interim access by the children M. and J. with their maternal grandmother N.R. (the "grandmother"), and for a court determination that it was an urgent motion.

[6] The Society brought a motion seeking to vary the existing interim maternal access order of the mother L.G. made by Justice J.P. Condon on July 22, 2016, and for a court determination that it was also an urgent motion.

[7] I released written Reasons on the urgency issue of the aforesaid motions, on Sept 13, 2020 (OCL motion) and Sept 19, 2020 (Society motion).

[8] I sent to counsel "Questions Requiring Answers and Submissions" in an effort to focus what I required to complete this matter.

[9] I convened a case conference continuation on Sept 9, 2020 following which I gave directions for completion of trial by way of affidavits and by written submissions from counsel.

[10] I released written Reason, including an order, for disposition (placement) and access with respect to the eldest child M. on November 26, 2020.

[11] I released written Reasons, including an order with respect to disposition (placement) and access with respect to the youngest child P. on Nov 29, 2020.

PLACEMENT OF THE CHILD J

Protection Issues

[12] In my Reasons after trial, I dealt with the ongoing need for protection if the children were to be returned to their mother, the person who had charge prior to their removal in November 2014 by the Society. I concluded that there was an ongoing need for protection. I also concluded that no supervision order would be adequate to protect them if they were to be returned to her, mainly because she could not be relied upon to comply with supervision order conditions, and because she was not amenable to working with the Society. I also concluded that the court ought not believe all that the mother said.

[13] This left consideration of the grandmother as caregiver and custodian. Would she be a source of a risk of harm to the child "J" in this capacity? I concluded that she would not. But in view of the little evidence presented about the grandmother's plan, I had some reservations about placement. My reasons were released on June 11, 2020. Six full months have elapsed since then. I believe I have given all parties sufficient time and have been liberal in the directions I gave with respect to additional evidence and argument that the court would admit. Moreover, I provided to counsel a lengthy list of Questions and Answers sought by the court specifically to focus the evidence and arguments needed to deal with disposition and access.

[14] Whether the society believes that the grandmother is a source of risk of harm to J. is not explicitly set out in the society's evidence or argument filed to date. It is clear, however, that the Society opposes placement of J. with her. Why it does so can be distilled down to a handful of reasons.

(a) The grandmother was present in the lives of the children while they were in their mother's care. No report was ever received by the Society from the grandmother of any harm or risk of harm to the children. The Society states that she has "confirmed most recently" that she does not believe that the children were exposed to any risk while with the mother, does not believe that the society has evidence that justified their removal from their mother, and does not understand why the society continues to insist on supervising the mother's access visits.

(b) The grandmother does not believe that the mother will harm the child J. if J. is placed with the grandmother.

(c) The grandmother does not believe that further involvement of the society is necessary if J. is placed with her, and the society believes that the grandmother will defer to the mother on matters concerning the child J., presumably when the mother is present with the grandmother and J.

(d) The grandmother has not provided a CPIC (police record check) to the Society for herself, or for Mr. Ro.C, an 81 year old man the children seem to regard as a 'grandfather figure', with whom the grandmother has maintained a relationship for over a dozen years.

(e) The grandmother's present residential accommodations, which appear to be a geared-to-income, one bedroom unit in a seniors complex is not suitable, from a variety of perspectives, to house an additional two teenage occupants (M. and J.).

(f) The grandmother does not have transportation that is needed for properly caring and providing for J., particularly for purposes of attending school, but also for a number of other domestic needs for which transportation is necessary.

(g) The grandmother's own history as a mother to her daughters, her inadequacy as a parent to them, especially the daughter R., and some familialy instigated allegations of the grandmother's being a sexual abuser.

(h) Possibly, the grandmother's age, her medical health issues, and the adequacy of her financial resources.

(i) The reality of who J. is and what he needs. Included in this are his weaknesses and deficiencies as a young person, a student, and his current age and stage of life. Added to this is the fact that J. wants to be with his mother. The society does not feel that the grandmother can handle J., especially with his older sister M. in the home.

[15] While the mother may still be a source of "protection issues" for the child J., I do not feel that his grandmother is. The society said very little about the grandmother in its evidence at trial. It submitted that this was because it had been agreed that the grandmother would not be presented as a placement option for any of the children. I dealt with that complaint in my recent decision released November 26, 2020 relating to the child M. in paragraphs [5] to [11] under the heading "Preliminary Matter". In any event, I disclosed to all parties what my inclination was with respect to disposition (placement) of J. The trial essentially continued and I gave them all what I consider a generous opportunity to present further evidence and to make further submissions on both placement and access issues. They have done so. I include in such supplementary evidence any affidavit evidence that they have also filed in connection with the urgent motions brought by the Society and by OCL counsel for the children (as was requested by them). A considerable amount of the Society's supplementary evidence dealt with the grandmother and raised not only placement and access issues but also what I interpreted to be protection issues. In any event, I have dealt with the grandmother as a child protection concern in my decision with respect to the child M. at paragraphs [21], [23], [24] and [26]. These apply equally to J. The society has not convinced me that the grandmother is a source of risk of harm to J. if J. were placed in her care and custody, and lives with her and with his sister M.

Placement Issue

[16] From a best interests perspective, the placement of J. with his grandmother was dealt with in my Reasons after trial at paragraphs [191] to [205] which I do not intend to repeat here. I concluded that J. would be marginally better off in his grandmother's care than in the care of society foster parents. I recap some of the reasons given:

(a) preference for family care and milieu over institutional (non-family) foster care;

(b) the child's wishes, even if discounted somewhat for J's lesser maturity;

(c) continuity of co-residence with his sister and full sibling M;

(d) greater opportunities for better, expanded maternal and sibling access;

(e) equal, and perhaps better, educational opportunities;

(f) likelihood of his French heritage and language usage being fostered.

[17] My Reasons after trial were released June 11, 2020. There have been some significant changes with respect to J. that have taken place since then. These changes are set out in the society affidavit of Dawn Lamswood and the affidavit of C.L. Wilton filed by OCL counsel for J.

[18] Paragraphs [56] to [59] of the Reasons after trial released June 11, 2020 provide the court's impressions of J. based on the evidence presented at trial.

[19] J.'s placement circumstances after he was apprehended by the society were:

• Nov 28, 2014 – To H. foster home "as place of safety" (likely in Elliot Lake)
• Early 2015 – To C. foster home (near Iron Bridge)
• Early 2019 – To W. foster home (Thessalon) – move requested by J.
• June - July 2020 – To K. foster home (Echo Bay) – reason for move not given.

[20] From a permanency standpoint, these moves among different foster homes, move J. further distant from J.'s home in Elliot Lake, and do not portray a picture of stability, contentment and permanency for J. The evidence filed by OCL counsel indicates that J. was not happy when his sister moved from the C. foster home, and he asked to be moved to her new home with the W.'s.[2] He was moved, but for reasons that are still vague, became unhappy at the W. foster home. He has now been moved to the K. foster home which makes his contacts with his siblings even less frequent. Much of his stay in foster care has been in homes where the foster family was not French speaking. It is a reasonable inference that J. misses his family members when he is separated from them. He wants to see them more often than he does. He misses his friends that he had in Blind River when he attended school there. He remains unchanged in his desire to live with his grandmother if he is not allowed to live with this mother.

[21] The supplementary evidence filed by all parties has not changed my inclination to J. being placed with his grandmother, in her care and custody. J. is now age 14. Next year he will attend high school. The society's concern with the mother was the risk of physical harm in the discipline of J. by the mother's boy friend. I did not make a finding that the mother herself inflicted any untoward punishment on any one of her children. The evidence did not indicate this. I found that she must have known, or ought to have known, what was happening, and was complicit in it. While the society has persuaded me that returning J. to live with his mother is not a reasonable placement option at this time, it has not convinced me that he cannot live with his grandmother and be safe there.

[22] The society is stretching too much in portraying the grandmother as a source of risk of harm for this 14 year old boy. Its lack of CPIC information on the grandmother is something it could have obtained itself, if not during the trial, then surely in the six months since. The society's evidence is that it did complete a "kin assessment" of the grandmother in 2012. If it needed a CPIC search result then, this dated assessment would at least have disclosed if the grandmother had any criminal convictions in her life, at her then age 61.[3]

[23] Similarly, the society's allegations that the grandmother sexually abused another child is based on society records that are clearly hearsay and unreliable in a trial. These allegations stretch back to when the grandmother was a child herself. The source of the information underlying these allegations is anonymous. These were raised by the society with the grandmother, apparently in 2012, and she responded to them. The society did not further investigate to determine whether what she told the society was true. Or if it did, it did not present this in evidence in the present trial. The end result is that I did not feel that the society had shown any sexual misconduct to another child on the part of the grandmother, on the balance of probabilities. In any event, I did not find it would have any relevance to her role as a caregiver and custodian for a 14 year old grandson.[4]

[24] The society submits that the grandmother has always sided with the mother, and still does. It submits that the grandmother has no insight about the mother as a source of risk of harm and that she makes statements "that she does not believe the children were exposed to any risk of harm while in the care of their mother". It also says that the grandmother stated she could not conceive of a situation where she would have to intervene in an access visit that involved the mother. It also says that the grandmother never reported any abuse or neglect even though she was present in the lives of the children daily when they were living with their mother. All of this, the society contends, makes the grandmother an unsuitable candidate for placement of the children.

[25] These submissions do not deal with the grandmother herself as a source of risk of harm. Rather, they point to the grandmother as basically a spectator at future access visits by the mother with the children at the grandmother's home. The society's concern is that the mother will take over parenting from the grandmother, and the grandmother will not intervene when she does. Moreover, that the grandmother will not report any maternal transgressions during her (the mother's) access visits to the society. These, I believe have been covered in the orders I have made in my Reasons that relate to the children M. and P. Firstly, with respect to 'in person' visits, the society will have the right to supervise any visits that P. has with her mother and this includes any such visits in which M. and/or J. may participate. Moreover, the society is given the right to supervise any visits between M. and the mother at the grandmother's home, which are limited to only once per week, at least during the 9 month term of the supervision order. The society is also able to speak with the grandmother and with the child M. privately (subject to the child M.'s right to have her counsel present). In addition to these precautions, the society can have unannounced visits at any time to the grandmother's home, which includes when an access visit is taking place. It can speak with P. at any time as she will be in extended society care. For access that is not 'in person', the society is not entitled to supervise this, but this is not the type of access that places any of the children at risk of any harm about which this court is concerned. This case is about physical harm primarily. If it is about any other type of harm, I have heard little about such other harm in the evidence. Moreover, I have made no finding in this status review application that there is a continued need of protection on any ground besides physical harm grounds.

[26] The immediate problem is one of residential capacity of the grandmother' home. I have decided, in separate Reasons, that M. can reside with her grandmother, and in her care and custody, in her present home. When this starts is up to M. to decide. As soon as she moves in, based on the grandmother's evidence, the housing authority in the Town of Blind River either may, or will, move the grandmother up in its priority list for a larger housing unit. Once she has a larger housing unit, then it makes sense that J. can then move to join them. My intention is to make an order that places J. in the grandmother's care and custody when she has a residence that can accommodate herself and two teenage grandchildren – in short a three bedroom home. In the meantime, J. must remain in his present placement with the K. foster family in Echo Bay from where he attends school in Sault Ste. Marie.

Supervision Order Terms and Conditions

[27] The society submits that if J. is placed in the care and custody of his grandmother, it should be subject to a supervision order of at least six months duration. Moreover, the court should impose terms and conditions that apply during the duration of this supervision order. It has suggested a number of these.

[28] The mother has not filed any evidence in the continuation of the trial that deals with any supervision order that would apply to J.'s placement with his grandmother. She has made no submissions with respect to either the duration of a supervision order or to the appropriate terms and conditions that the court should include in such order.

[29] OCL counsel for the children has suggested a supervision order term of 9 months. There were no terms and conditions of the supervision order proposed by OCL counsel, although the suggestion was made that terms and conditions that OCL counsel advocated for maternal access could be included as conditions in any supervision order that dealt with placement.

[30] The order I choose is one that necessarily requires supervision by the society. It is made under s. 101 and specifically under clause 1 of subsection 101(1) CYFSA:

(1) That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

[31] The length of the supervision order that a court makes under s.101(1) has limitations. It cannot be less than three months nor more than 12 months. I choose a 7 month duration for the order that applies to the child J. The reason is that this seems enough time to learn:

(a) whether J. has fit in satisfactorily with living with his grandmother and sister M.;

(b) whether an extension is required to the supervision order;

(c) whether any changes to the supervision order terms and conditions is needed;

(d) whether any problems are created by the interplay of supervision order and access orders.

Also, the supervision order made with respect to M. has a nine month term. Although its start date is not fixed to a specific day, it will start running before the supervision order with respect to J. starts. The disparity in terms is to try to have each terminate at about the same time so that they can be dealt with together in a subsequent status review.

[32] The terms and conditions that are may be attached to a supervision order are described in s.101(7):

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on:

(i) the child's parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

[33] In the supervision order that relates to the child J., most of the terms suggested by the society, with some changes I feel are appropriate, seem reasonable, particularly as there have been no objections from anyone else. It is important, from a consistency standpoint, that such terms and conditions mirror as closely as possible, those that apply to the child M., as the expectation is that she and J. will reside together with their grandmother. Moreover, even though the society seems to target their terms and conditions to the grandmother, I do not hesitate to impose some that apply to the child J., as well as to the mother and to the Society. The changes I suggest and the reasons for them are:

(a) With respect to private visits with J. at any location requested by the society, I would exclude his school. Students are sensitive, and to be seen by fellow student peers having interviews with society personnel may cause J. some disquiet or embarrassment. In addition, J. has legal representation. Should J. so request, I would include a provision that he be permitted on his request, to have his legal counsel present with him for legal advice for any, or any part of any, interview he has with the society. Moreover, I question whether society interviews with J. is a condition that should be imposed on the grandmother. I suggest that this is a condition that should apply to J. himself.

(b) I have no issue with the condition that the grandmother provide to the society releases to permit the society to obtain information from any service provider that deals with the grandmother. In fact, the grandmother says she has already done so. However, if the information is with respect to J., I believe that J. is at an age at which he should have some say in what information is released to the society. He may have some privacy interest in not having that information released. I suggest that the society may wish to re-think its proposed wording with respect to this condition, as should OCL counsel for J. My suggestion is that if release of information about J. becomes an issue, the parties can let the court deal with it.

(c) I have an issue with the condition that requires the grandmother to ensure adult supervision of J. by someone other than herself, and that this be limited to a maximum of four continuous hours. This is not a four year old child. J. is age 14. He can be on his own for increasingly longer periods of time without adult supervision. If he is supervised by anyone else, it need not be for four hours maximum. I have no idea where this maximum came from. If the grandmother wants to visit Mr. Ro.C. in Sault Ste. Marie, she should, like any responsible caregiver and custodian, either take J. with her or arrange for J. to stay with someone else. I would have no objection to a condition that would require the grandmother to advise the society well in advance of any planned trips, her itinerary and what arrangements she makes for J., if any.

[34] With respect to the society, I would impose a condition that it use its best efforts to facilitate the grandmother's efforts to obtain more spacious and more suitable accommodations through the town's housing authority, including writing any letters that might be required or desired by such authority.

[35] With respect to the mother, she is a person who would "participate in a plan for …. access to the child". In my Reasons after trial, I made reference to the mother's ignorance and her cavalier disregard of the conditions in her supervision order. I would not be averse to imposing a condition of the proposed supervision order that prohibits the mother from contact with J. other than is permitted in the access order of the court.

[36] I suggest that appropriate protection (placement and supervision) order and its terms and conditions with respect to M. are as set out below:

ORDER FOR PLACEMENT AND SUPERVISION OF CHILD J.

1. The order of Justice J.P. Condon dated June 22, 2016 with respect to temporary care and custody of the child J., born […], 2006 is terminated and the child, J., born […], 2006 shall be placed in the care of the maternal grandmother, N.R., for a period of seven months commencing when he physically moves into his grandmother's home, subject to the supervision of the Children's Aid Society of Algoma and subject to the following terms and conditions:

(a) The Society shall have the right to scheduled and unscheduled visits to the grandmother's home, as well as to 'private' visits with the child in the home, or at any other location requested by the Society except at the child's school, provided that the child shall have the right to have his legal representative present for any, or any part of such 'private' visits, which may include the counsel's remote presence by telephone or electronic means.

(b) The grandmother shall cooperate with the Society including meeting with the Society, on an announced and unannounced basis, and shall attend and participate in all scheduled case planning meetings, as requested by the Society;

(c) The grandmother shall sign such consents or releases as are necessary to permit the Society to obtain information, communicate with, or collaborate with any doctors, health care professionals, counselors, treatment providers, or other agencies or service providers involved with the grandmother and, subject to the qualification set out in clause (r) below, the child;

(d) The grandmother shall follow all reasonable recommendations of the Society and any other agencies or service providers involved with the grandmother and the child;

(e) The grandmother shall ensure that all medical needs of the child are appropriately met at all times, including attending with the child's physicians and following the recommendations of the physicians;

(f) The grandmother shall ensure that the physical, emotional, and developmental needs of the child are met and shall follow any recommendations made to her by any service providers involved with the grandmother and the child;

(g) The grandmother shall not leave R.C. and/or Mr. Ro.C. in sole caregiving roles with the child at any time, and shall not permit the mother, L.G. to be in a sole caregiving role except in the context of J.'s access to the mother as set out in the provisions for access by J. to his mother.

(h) The grandmother and the mother shall not allow any contact between the child and G.D.

(i) The grandmother and the mother shall remove the child from any location where G.D. may be found;

(j) The maternal grandmother and the mother and the child shall immediately report to the Society any contact that the child may have with G.D.;

(k) The grandmother shall ensure that the child has an alternate care provider if the grandmother is absent from her home overnight for whatever reason, and subject to any absences that arise from unforeseen or emergency circumstances, the grandmother shall give the society:

• 48 hours notice of her intended absence
• details of her itinerary
• her contact information during her absence
• details of the alternate care arranged for the child, who shall not be the mother.

(l) The grandmother shall advise the Society in advance of any changes in her living arrangements or contact information and, in any event, immediately when such changes occur;

(m) The grandmother and the mother shall ensure that the child is not in the presence of, or in the same residence as, any person who is engaging in verbal or physical aggression, or any person who presents as a risk of engaging in verbal and physical aggression;

(n) The grandmother and the mother shall not use any form of physical discipline or corporal punishment on the child, and shall not permit any other person to use any form of physical discipline or corporal punishment on the child;

(o) The grandmother shall not permit L.G. to have access to the child except as permitted by this order;

(p) The child shall have no contact with his mother except such contact as is permitted within the limits of the access provisions of the court.

(q) The grandmother, in her care of the child, and the mother, and the child, shall follow the directives of the Public Health Agency of Canada and Ontario Public Health relating to COVID-19.

(r) The child shall sign such consents or releases as are necessary to permit the Society to obtain information, communicate with, or collaborate with any doctors, health care professionals, counselors, treatment providers, or other agencies or service providers involved with the child, provided that he may refuse to sign any particular consent or release, in which case, the society or the child may bring a motion for a ruling on whether such consent is to be provided, or may bring a motion for production of such non party information.

(s) The child shall give the society 48 hours notice of his intention to move into the home of the grandmother N.R., and shall not move into the home of his grandmother until such time as she has acquired a three bedroom residence.

(t) The mother, L.G. shall not have any contact with the child other than is permitted in the provisions for access in the order of this court.

(u) The Children's Aid Society of Algoma shall use its best efforts to facilitate the grandmother's efforts to obtain more spacious and more suitable accommodations through the town's housing authority, including writing any letters that might be required or desired by such authority.

ACCESS TO AND BY J

Statutory Provisions Relating to Access

[37] The Child, Youth and Family Services Act (the CYFSA) provisions that relate to access to or by the child J. are in sections 104. These provide:

S.104 (1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

(2) Where a child is in a society's care and custody or supervision, the following may apply to the court at any time for an order under subsection (1):

1. The child.

2. Any other person, including a sibling of the child and, in the case of a First Nations, Inuk or Métis child, a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities.

3. The society.

[38] What is clear is that almost anyone can apply for an order with respect to access. The court can order access to the child by another person, or it can order access by the child to another person. The court can make, or vary, an order of access at any time. Any access order that the court makes must be made in the best interests of the child. Section 74(3) lists a number of circumstances that, if applicable in the case, the court must consider these in making its access order.

Claims Made with Respect to Access

[39] There is still a formal claim by the society for an order for no access to the mother. The society, early in the trial evidence, indicated that it was not advancing such claim and that it was content that an order be made for maternal access. At that time, it anticipated that J. would be placed in extended society care together with his siblings. It did not anticipate that J. might be placed in the care and custody of his grandmother. It was also aware however, that J. (as well as his siblings) had claims before the court in the status review application for access by himself to his mother, to his grandmother, and to his siblings. OCL counsel advanced such claims at trial.

[40] The society's submission on sibling access was that that the children would see each other during the mother's access visits. They might see each other when their respective foster parents arranged respite visits. The society also stated it would encourage telephone and electronic sibling contact (access) which it stated is currently available to the children. It would also arrange in person sibling contact when the opportunity arises.

[41] The mother made no submissions on sibling access.

[42] OCL counsel for the children made submissions that were confusing. He brought an urgent motion for access by the children J. and M. to their grandmother. He submitted a draft order setting out what he wanted the court to order and in it, he asked for access by the grandmother and the mother to the children J. and M. I did not find any OCL submissions with respect to details of any sibling access, in particular, by J. to his sisters M. and P.

Access to and by J.

[43] A starting point for access is to recap what the access is at present. Firstly, it is the mother who was granted this right of access to all three of her children. It is access that is still 'interim'. It was ordered by Justice Condon, and dates back to July 2016. He ordered a minimum of 24 hours per month including not less than three hours per week. She exercises 'in person' access with all three children each Sunday in Blind River for six hours. All visits are fully supervised by the society. The mother receives a $25 gas card weekly from the society to defray her transportation expenses. The mother has to arrange her own transportation to Blind River from Elliot Lake. It was exercised at and from the Best Start Hub, which I believe was a supervised access centre, and which is now closed due to the pandemic. I am not sure where her present access is exercised, but suspect it is at or from the society's offices in Blind River. Part of her six hours of weekly access is also exercised in the community.

[44] J. has expressed wishes to spend more access time with his mother. The society, on the other hand, wishes less access by her, and wishes to supervise the mother's visits with any and all of her children. In fact, it has done so since the children were apprehended.

[45] I had already expressed my feeling that the best interests considerations were more suited to determinations of care and custody than they were to determinations of access. The criteria for an access order are the paramount and other purposes of the CYFSA statute [s.1], the best interests test [s.74(3)], and the section dealing with the making of access orders [s.104].

[46] Consideration of section 1 shows that the statute advocates the best interests, protection and well-being of children. It also promotes integrity of the family unit, the least disruptive course of action, respect for a child's stable relationship within a family, a child's cultural and linguistic needs, and inclusion of participation of a child's parents and relatives, where appropriate. The society's position on access with respect to J. seems to focus only on protection, and specifically, protection from physical harm. In the case of J., I have discounted the protection concern for reasons stated above, and as set out in my Reasons after trial. The purposes of s. 1 CYFSA outweigh any protection concerns.

[47] The section 74(3) best interests circumstances include a number of considerations. First and foremost for J., are his views and wishes to which I have given considerable, but not substantial, judicial weight. In addition, the circumstances in subsection (c) include among other things, a child's emotional needs, the child's level of development, the child's linguistic and cultural heritage, the importance of the child's development of a secure place as a member of a family, the importance of a child's emotional ties to a parent and siblings, the risk that a child may suffer harm by being kept away from a parent, and the degree of risk that justified a finding that the child was in need of protection. In considering all of these with respect to J., they far outweigh any concerns for protection from harm, especially physical harm. While J. is not going to be in the care and custody of his mother, he will have contact with her in the context of access. These considerations overwhelmingly favour an access order between J. and his mother.

[48] Section 104 permits the court to make an order respecting access by J. to his mother. It also gives the court a wide discretion to impose such terms and conditions on the order of access that the court considers appropriate. Appropriate, in my view, has to factor in the particular child together with his attributes, the child's mother, the history between them, and the circumstances in which they will be during the period of time that any access order will be operative.

[49] J. has his own claim for access to his mother. I believe that he should be the access holder of any order that I make with respect to this access rather than the mother. There is no presumption in the CYFSA in favour of an access order in which the mother is an access holder in circumstances such as these.[5] My intention is to dismiss the mother's claim for access to J. for the following reasons:

(a) For the mother to be an access holder would likely perpetuate litigation between the mother and the society.

(b) In addition, the mother as access holder, based on the history of access in this status review proceeding, would complicate access arrangements, would be tied to society funding limitations, society location availability, and society access supervisory personnel availability. It would also involve notice by the mother to the society and potential suspension of access by the society, if she failed to call to confirm an access visit.

(c) With J. as the access holder, it is less likely that J. and the society would litigate, particularly as he is already age 14, and has legal representation.

(d) With J. as the access holder, his access to his mother is better dictated by the court rather than left in the discretion of the society.

[50] The access, and the conditions of access that I believe are appropriate to grant to J. as access holder for access to his mother are these:

ORDER FOR ACCESS OF CHILD J. TO MOTHER

2. The order of Justice J.P. Condon dated June 22, 2016 with respect to the interim access of the mother to the child J., born […], 2006 is terminated, the mother's claim for access to the said child is dismissed, and the child J., as access holder, shall have access to his mother L.G. commencing on the same day that the order for care and custody of M. with her maternal grandmother N.R. commences, such access shall be subject to the following:

(a) subject to the mother's consent, by attending at any access visits of the mother with the child P. (and the child M., if she is also participating) that are arranged with the Society, provided that transportation of J. to and from the location(s) of such access, until he moves into the residence of his grandmother shall be the responsibility of the Society and thereafter, shall be the responsibility of J.

(b) In addition to the access in (a) above:

(i) On one day in each week, on the same days and times that access visits take place by his sister M. with the mother, such access visits between 8:00 am and 8:00 pm at the residence of his maternal grandmother, and/or in the community of Blind River only from such residence, provided that access:

• may be supervised in the discretion of the society by the society or by a person approved of by the society, and

• shall be on 48 hours written notice by J. to the society by e-mail or text message including details of such access such as start time, location(s), duration, persons present, and activities planned; and

• shall end no later than 8:00 pm on the day of such access, and shall not include any overnight stays by the mother at the grandmother's home.

(ii) On any day, between 8:00 am and midnight, by telephone, e-mail, text message, or via any digital means including Skype, Facetime, What's App or ZOOM, for unlimited durations, and may include J.'s siblings M. and P., provided that these are initiated by J., and provided that all of such access shall not be supervised by the society, nor shall it be on notice to the society.

(c) The child J. shall provide to the Society his telephone number(s), his municipal address, his e-mail address as well as any subsequent changes to them.

[51] I decline to include as a condition of any access order that the mother desist from posting any photos, videos or information about the children on any social media without the society's express consent. Frankly, this is more properly a condition of a supervision order than an access order. I heard and read no submissions from anyone why such an order would be necessary, desirable, reasonable or in the best interest of any child. The children M. and J. will not be in society care in any event. There is no supervision order with respect to the child P. The objection to posting on social media should more logically have its origin with the child about whom the posting relates. There is no evidence of objection by any of the children.

Order for Interim Access to the Grandmother

[52] The urgent motion brought by OCL counsel on behalf of J. seeking an order for interim access by J. (as access holder) to his grandmother is a new claim, in the sense that no order was previously made for access between them in this or any other proceeding. The motion claim of J. is one in which he would be the access holder. There is no claim by the grandmother for her access to him (in which she would be the access holder).

[53] Such order, if made, would have only a limited lifespan as the ultimate intention of this court is that J. will move in with, and reside with, his grandmother in her home – a more spacious one than she has at present. However, when such move will be realized cannot be predicted to a certain date. The urgent OCL motion is clearly meant to address the time between the present and the date that J. starts to reside in his grandmother's home.

[54] The arguments presented on behalf of J. by his OCL counsel in a nutshell are:

(a) In the three months since the June 11, 2020 release of my Reasons after trial, the society arranged only one visit[6] by J. with his grandmother, fully supervised;

(b) The stability of J.'s relationship with his grandmother is threatened by lack of contact between them, and the placement of J. with his grandmother is put at risk.

(c) The unequivocal wishes of J. to see his grandmother in person are almost completely being ignored by the society which makes no secret that it disapproves of any placement of J. with her.

(d) The introduction of access visits by J. with his grandmother is a desirable transition from foster care to 'kin' care, and lack of such access visits places such 'kin' care at risk.

[55] The society's submissions on interim access between J. and his grandmother are summarized below:

(a) The grandmother's circumstances are not conducive to access visits by J. at her home. Her limited space and her inadequate amenities argue against such access especially if his sister is living there.

(b) These visits are pre-mature until the Society completes a kin assessment to determine if the grandmother is a fit placement. The child J. should not start transition visits and be disappointed later if transition to the grandmother does not materialize.

(c) The court should consider and be satisfied that such interim access meets the best interests test and that the s.105(6) considerations [i.e. beneficial and meaningful and will not impair future adoption opportunities] favour such access.

(d) The current residence locations, school and class requirements, geographical distances, transportation arrangement problems and supervision of access difficulties do not favour the interim access sought.

[56] The mother did not make any submissions although she is in favour of J. having more contact with his grandmother.

[57] I agree that it would be better if J. had more in person visits with his grandmother to accommodate both him and her to the eventuality of living together in her home. J. has lived in care of the society in foster homes for over six years. Living with kin will be different for him. It will also be different for his grandmother. I do not think that having little access threatens the relationship between them. It has persisted, and mutually so, despite long periods of no contact between them. I have addressed S.1 (paramount and other purposes) and s.74(3) (best interests considerations) as they apply to access between J. and his mother in paragraphs [39] to [41] above. These apply equally, with some changes to context, and favour access between J. and his grandmother.

[58] I agree that the society has been niggardly in the 'contact' it has permitted between J. and his grandmother. This is not only since June 11, 2020 when I released my Reasons after trial, but stretches back to the start of this case six years ago. While there was never any order for access between them, the society was aware that it was J.'s wish to have visits with her. I disagree with the society's argument that s.105(6) considerations apply. They apply only to determinations of access with respect to a child who is in extended society care. J. is not. In terms of the problems that arise in arranging interim access visits between J. and his grandmother, the onus for this on the society. It may present problems but these are far from insurmountable.

[59] Although I did not intend to deal with J.'s urgent motion claim for interim access to his grandmother in these Reasons, it may be prudent to make some provisions in the event that J. decides to remain where he is until he finishes his school semester, or in the event that the grandmother is delayed in acquiring a three bedroom home. I am prepared to make an interim access order in which J. is the access holder to his grandmother in the following terms:

ORDER FOR INTERIM ACCESS OF CHILD J. TO GRANDMOTHER

3. The child J., born […], 2006, shall have interim access to his grandmother N.R. subject to the following conditions:

(a) The child J. will be the access holder;

(b) Such interim access will take place at the home of the grandmother or in the community of Blind River from the home of the grandmother;

(c) Such interim access will terminate when the child moves into his grandmother's residence;

(d) Such interim access will take place on such days that the child chooses but shall include no overnight stays;

(e) The child shall provide to the society 48 hours e-mail or text notice of the date, start time, end time and duration of such access visits;

(f) The society shall be responsible for transporting the child to the grandmother's home at the start of such visits, and the society shall be responsible for transporting the child back to his residence at the end of such visits, provided that alternative transportation arrangements may be substituted on mutual agreement of J. and the Society;

(g) The society shall be free to supervise any or all of such interim access visits.

(h) The society shall provide to the grandmother N.R. 24 hours notice of its intention to supervise any interim access visit.

(i) Any such interim access visit shall take place only with the consent of the grandmother, N.R.

(j) Such interim access shall commence on December 12, 2020.

[60] I thank counsel for filing their additional evidence and their submissions. I have taken into account their evidence and submissions filed on the urgent motions, as requested by them, in formulating these Reasons.

Release and Signature

Released: December 9, 2020

Signed: Justice John Kukurin

Footnotes

[1] See Case Conference Continuation Memo of Sept 9, 2020, which was circulated to counsel following such conference convened by myself as trial judge.

[2] According to the evidence at trial, the child J., as well as M., had been placed in the W. foster home in the 20 month period after they were apprehended from their mother in October 2011 so were familiar with that home and those foster parents.

[3] See paragraph [21] of my Reasons released November 26, 2020 with respect to the child M. for a more detailed explanation of why I discounted lack of a CPIC record check as a reason why the grandmother was an unsuitable placement.

[4] See paragraph [23] of my Reasons released November 26, 2020 with respect to the child M. for a more detailed explanation of why I discounted the society's allegations of the grandmother's involvement in sexual abuse as a reason why she was an unsuitable placement.

[5] Subsection 105(7) requires the court to specify the access holder and the person to whom access has been granted, but this applies only in the case where the court makes or varies an access order with respect to a child who is in extended society care. The child J. is not in extended society care. However, s.104 permits the court to make an order respecting access by a child to a person. I interpret this to mean that the child is the "access holder" and I use this terminology with respect to J. and his access to his mother.

[6] On August 24, 2020.